Plebiscite to Legislate?

The Turnbull government’s position on legislating same sex

marriage is evidently becoming murky as coalition backbenchers are

divided on what way to approach this moral and legal issue in Australia.

The latest misguided input by coalition backbencher Warren Entsch

has led to the question, ‘Can a government impose restrictions that would

mandate a result of a National Plebiscite?’. Plebiscites in Australia are an

uncommon event, having only had three plebiscites since federation, with

the last question being put to the nation in 1977, regarding the choice of

the National Anthem. The significant characteristic of the Plebiscite is

that it is merely a vote of opinion in the community, and in no way does it

have any legal effect on parliaments choice to legislate.

So what is the difference between a plebiscite and a referendum?

And why shouldn’t the nation go to a referendum on this issue? A

referendum is a fundamental part of the Australian Constitution, outlined

in section 128. A national referendum is the only procedure, (except for a

few sections in which parliament may provide certain amendments), in

which the Australian Constitution may be amended. Within the

constitution, section 128 referendums puts the power in the peoples

hands, and represents Federalism in a way Australia’s founding fathers

imagined. The Australian Constitution outlines clear legislative power of

the Federal Executive, which was reinforced after the passing of the

Australia Acts in 1986. Section 53 lays the path for areas in which the

Federal parliament has the outright ability to legislate, included in this is

the subject of marriage.

So is a referendum required to legislate for same sex marriage? The

plain answer is no. The federal government has the ability to legislate on

the matter of marriage, and this was made clear by the High court, when

the ACT legislated to allow same sex marriage in 2013. Given the

inconsistency with the federal governments marriage act, under s109,

ACT’s new legislation was deemed inoperative. A referendum could well

be used to amend the constitution to give the federal government the

power to legislate for same sex relationships, by amending the

Constitution and inserting a new subsection within section 53. But for the

core of the matter, a referendum would not be required, nor be necessary

or cost effective to legislate to amend the marriage act to include same

sex marriage.

So where does the plebiscite fit in this picture? A plebiscite on this

issue would continue to raise great debate within the nation. Not only

would it be an expensive process, a plebiscite will give no legal effect to

any legislation as result of the outcome of the vote. A plebiscite will

ultimately show the majority opinion of the nation as a whole on this

matter, but given polling held by well respected Australian statistical

companies, that show an overwhelming support on this issue, a plebiscite

on this matter, prima facie appears to be one with political motivation, in

order to protect factional power lines within both coalition parties.

More importantly, the latest suggestion to give the plebiscite a

legislative effect is what may ultimately make the whole process

unconstitutional. The High Court’s position in Westlake’s, proved a

referendum is a valid restrictive procedure, and does not contravene any

manner and from outlined in section 6 of the Australia Act, by giving the

people the power to amend the constitution that regulates parliaments

position in society. The validity of a plebiscite on the other hand is not so

clear. The current suggestion that legislation could be drafted prior to the

plebiscite, but only presented for assent after a yes vote from the national

vote, which is held after an election may be flawed. Given that a

government and a legislature can not bind the next government by given

away the power to legislate (APA), legislation such as this may be

invalid.

Even if it is that the next government be a Turnbull coalition

government, irrelevant of the political party, this legislation would appear

to bind the next government, by giving away future governments power

to legislate. The grey area in this situation is the lack of a high court

opinion on this matter.

Given the coalitions current stance, the most likely occurrence for

legislation on this matter will be held after the next election, given the

current Turnbull Coalition position, to hold a plebiscite after the next

election, with a yes vote likely to be the result, legislation would likely

follow in the year following. If in the unlikely event, given current

polling, Shorten’s Labor party takes power, a yes vote would likely occur

within the parliament and legislation passed with a simple majority in the

House of Representatives and the Senate.

If the Entsch’s ‘legislative proposal’ approach was approved by the

coalition, the likely imminent challenge by the conservative Christian

Lobby to the High Court on the validity of such restrictive procedures,

would be welcomed within the legal community in providing a clear

position on the powers, and the restrictive procedures as a result of a

national plebiscite.

– Declan High